(a) A special minimum wage certificate shall specify the terms and
conditions under which it is granted.
(b) A special minimum wage certificate shall apply to all workers
employed by the employer to which the special certificate is granted
provided such workers are in fact disabled for the work they are to
perform.
(c) A special minimum wage certificate shall be effective for a
period to be designated by the Administrator. Workers with disabilities
may be paid wages lower than the statutory minimum wage rate set forth
in section 6 of FLSA only during the effective period of the
certificate.
(d) Workers paid under special minimum wage certificates shall be
paid wages commensurate with those paid experienced nondisabled workers
employed in the vicinity in which they are employed for essentially the
same type, quality, and quantity of work.
(e) Workers with disabilities shall be paid not less than one and
one-half times their regular rates of pay for all hours worked in excess
of the maximum workweek applicable under section 7 of FLSA.
(f) The wages of all workers paid a special minimum wage under this
part shall be adjusted by the employer at periodic intervals at a
minimum of once a year to reflect changes in the prevailing wages paid
to experienced individuals not disabled for the work to be performed
employed in the vicinity for essentially the same type of work.
(g) Each worker with a disability and, where appropriate, a parent
or guardian of the worker, shall be informed, orally and in writing, of
the terms of the certificate under which such worker is employed. This
requirement may be satisfied by making copies of the certificate
available. Where a worker with disabilities displays an understanding of
the terms of a certificate and requests that other parties not be
informed, it is not necessary to inform a parent or guardian.
(h) In establishing piece rates for workers with disabilities, the
following criteria shall be used:
(1) Industrial work measurement methods such as stop watch time
studies, predetermined time systems, standard data, or other measurement
methods (hereinafter referred to as ``work measurement methods'') shall
be used by the employer to establish standard production rates of
workers not disabled for the work to be performed. The Department will
accept the use of whatever method an employer chooses to use. However,
the employer has the responsibility of demonstrating that a particular
method is generally accepted by industrial engineers and has been
properly executed. No specific training or certification will be
required. Where work measurement methods have already been applied by
another employer or source, and documentation exists to show that the
methods used are the same, it is not necessary to repeat these methods
to establish production standards.
(i) The piece rates shall be based on the standard production rates
(number of units an experienced worker not disabled for the work is
expected to produce per hour) and the prevailing industry wage rate paid
experienced nondisabled workers in the vicinity for essentially the same
type and quality of work or for work requiring similar skill.
(Prevailing industry wage rate divided by the standard number of units
per hour equals the piece rate.).
(ii) Piece rates shall not be less than the prevailing piece rates
paid experienced workers not disabled for the work doing the same or
similar work in the vicinity when such piece rates exist and can be
compared with the actual employment situations of the workers with
disabilities.
(2) Any work measurement method used to establish piece rates shall
be verifiable through the use of established industrial work measurement
techniques.
(i) If stop watch time studies are made, they shall be made with a
person
or persons whose productivity represents normal or near normal
performance. If their productivity does not represent normal or near
normal performance, adjustments of performance shall be made. Such
adjustments, sometimes called ``performance rating'' or ``leveling''
shall be made only by a person knowledgeable in this technique, as
evidenced by successful completion of training in this area. The persons
observed should be given time to practice the work to be performed in
order to provide them with an opportunity to overcome the initial
learning curve. The persons observed shall be trained to use the
specific work method and tools which are available to workers with
disabilities employed under special minimum wage certificates.
(ii) Appropriate time shall be allowed for personal time, fatigue,
and unavoidable delays. Generally, not less than 15% allowances (9-10
minutes per hour) shall be used in conducting time studies.
(iii) Work measurements shall be conducted using the same work
method that will be utilized by the workers with disabilities. When
modifications such as jigs or fixtures are made to production methods to
accommodate special needs of individual workers with disabilities,
additional work measurements need not be conducted where the
modifications enable the workers with disabilities to perform the work
or increase productivity but would impede a worker without disabilities.
Where workers with disabilities do not have a method available to them,
as for example where an adequate number of machines are not available, a
second work measurement should be conducted.
(i) Each worker with a disability employed on a piece rate basis
should be paid full earnings. Employers may ``pool'' earnings only where
piece rates cannot be established for each individual worker. An example
of this situation is a team production operation where each worker's
individual contribution to the finished product cannot be determined
separately. However, in such situations, the employer should make every
effort to objectively divide the earnings according to the productivity
level of each individual worker.
(j) The following terms shall be met for workers with disabilities
employed at hourly rates:
(1) Hourly rates shall be based upon the prevailing hourly wage
rates paid to experienced workers not disabled for the job doing
essentially the same type of work and using similar methods or equipment
in the vicinity. (See also Sec. 525.10.)
(2) An initial evaluation of a worker's productivity shall be made
within the first month after employment begins in order to determine the
worker's commensurate wage rate. The results of the evaluation shall be
recorded and the worker's wages shall be adjusted accordingly no later
than the first complete pay period following the initial evaluation.
Each worker is entitled to commensurate wages for all hours worked.
Where the wages paid to the worker during pay periods prior to the
initial evaluation were less than the commensurate wage indicated by the
evaluation, the employer must compensate the worker for any such
difference unless it can be demonstrated that the initial payments
reflected the commensurate wage due at that time.
(3) Upon completion of not more than six months of employment, a
review shall be made with respect to the quantity and quality of work of
each hourly-rated worker with a disability as compared to that of
nondisabled workers engaged in similar work or work requiring similar
skills and the findings shall be recorded. The worker's productivity
shall then be reviewed and the findings recorded at least every 6 months
thereafter. A review and recording of productivity shall also be made
after a worker changes jobs and at least every 6 months thereafter. The
worker's wages shall be adjusted accordingly no later than the first
complete pay period following each review. Conducting reviews at six-
month intervals should be viewed as a minimum requirement since workers
with disabilities are entitled to commensurate wages for all hours
worked. Reviews must be conducted in a manner and frequency to insure
payment of commensurate wages. For example, evaluations
should not be conducted before a worker has had an opportunity to become
familiar with the job or at a time when the worker is fatigued or
subject to conditions that result in less than normal productivity.
(4) Each review should contain, as a minimum and in addition to the
data cited above, the following: name of the individual being reviewed;
date and time of the review; and, name and position of the individual
doing the review.
